Brett Raymond Gooley as executor of the Estate of the late Melville Gooley v Gooley [2023] NSWSC 1117

Supreme Court New South Wales

Medium Neutral Citation: Brett Raymond Gooley as executor of the Estate of the late Melville Gooley v Gooley [2023] NSWSC 1117 Hearing dates: 8 September 2023 Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Gross sum costs order made Catchwords: COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Gross sum costs order — No issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Eastmark Holdings Pty Ltd v Owners Strata Plan 74602 [2009] NSWSC 1483 Category: Costs Parties: Brett Raymond Gooley as executor of the Estate of the late Melville Gooley (plaintiff) Aleta Gooley (defendant) Representation: Counsel: JP Knackstredt (plaintiff) R Size (defendant)

Solicitors: Macpherson Kelley Pty Ltd (plaintiff) David Leamey Solicitors (defendant) File Number(s): 2022/383436

EX TEMPORE JUDGMENT (REVISED)

Summary 1. The one thing about which the parties in this matter can agree is that the summons filed on 20 December 2022 should be dismissed. They cannot agree on costs. Without disrespect, I shall refer to the parties by their given names. 2. The plaintiff, Brett, and his sister Aleta, the defendant, have been in dispute in this Court in several hard fought proceedings for a number of years concerning the affairs of their late father. 3. Brett seeks an order that Aleta pay his costs of the summons on a gross sum basis of $42,000. Aleta submits that Brett should pay her costs pursuant to Uniform Civil Procedure Rules 2005 Part 42 Rule 42.20(1): If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed. 1. For the reasons that follow, being in summary that the proceedings were reasonably commenced and Aleta then capitulated, the Court will order that Aleta should pay Brett's costs. The gross sum order will be made because it will avoid the disproportionate and inevitable prospect of future disputation were the question of what a relatively small claim for costs is to go to assessment. 2. Mr J P Knackstredt of Counsel appeared for Brett. Mr R Size of Counsel appeared for Aleta.